This post examines an issue that arose in a civil suit,
which the judge who has the case described as “primarily” one for defamation,
with "attendant claims"
for copyright
infringement, unfair competition, and breach of contract. . . . The
plaintiffs, whom the court will collectively call `Music Group,’ filed this
case against John Doe defendants in the United States District Court for the Western District of Washington. . . . Music Group alleges in sum
that the defendants have used anonymous accounts on the Internet service Twitter — under the account names @ FakeUli and @
NotUliBehringer — to `publish disparaging remarks about’ Music Group,
its employees, and its CEO, Uli Behringer. . . .
According to Music Group, the Doe
defendants have used these accounts to make `malicious, defamatory statements,
which the [defendants] knew to be untrue’; this includes claiming that Music
Group `designs its products to break in 3–6 months,’ that Music Group `encourages
domestic violence and misogyny,’ and that the company's CEO, Mr. Behringer,
`engages with prostitutes.’ . . .
Music Group Macao
Commercial Offshore Limited, et al. v. John Does, Defendant [sic], 2015 WL
930249 (U.S. District Court for the Northern District of California 2015) (“Music Group Macao v. John Does”).
The judge goes on to explain that because the
relevant Twitter accounts are anonymous,
Music Group has not been able to serve process on the defendants. Music Group
has thus subpoenaed Twitter (who is not a party to this suit) to reveal the
identities of the @ FakeUli and @ NotUliBehringer users
so that it can serve the complaint on them. More precisely, Music Group's
subpoena would have Twitter produce `the name, address, email address and any
proxy address’ of the accounts' owners. . . .
The Washington district
court has already granted Music Group expedited discovery to determine the
identities of the Doe defendants. . . . The Washington court held that Music
Group had shown `good cause’ for the requested discovery. . . . Given
that order, Music Group subpoenaed Twitter for the identifying information. . . . So far, Twitter has
not produced information in response. `Moreover,’ according to Music Group, `although
the Court in [Washington] has issued the order for early discovery, Twitter [which is headquartered in San Francisco] would not
agree to have the Court in [Washington] decide’ a motion to compel compliance
with the subpoenas. . . .
Music Group Macao v.
John Does, supra.
She went on to note that Music Group then filed
this miscellaneous proceeding, asking
this court to enforce the subpoenas. . . . Twitter `takes no position on the
merits’ of Music Group's motion. . . . Twitter states only that this
court must make the necessary legal analysis `to ensure that the appropriate 1st Amendment standard is met and that the [Doe defendants'] right to anonymous
free speech is protected.’ . . . Twitter also says that, if the court rules in Music Group's
favor, it will respond to the subpoenas. . . .
Music Group Macao v.
John Does, supra.
The judge began her analysis of the issue in the case,
explaining that
`[i]t is well established that the 1st
Amendment protects the right to anonymous speech.’ Art of Living
Foundation v. Does 1–10, No. 10–5022, 2011 WL 5444622 (U.S. District
Court for the Northern District of California 2011) (citing McIntyrev. Ohio Elections Commission, 514 U.S. 334 (1995)). `However, the right to
anonymity is not absolute.’ Art of Living Foundation v. Does, supra. `Where
anonymous speech is alleged to be unlawful, the speaker's right to remain anonymous may give way to a plaintiff's need to discover the speaker's identity
in order to pursue its claim.’ Art of Living Foundation v. Does, supra.
In In re Anonymous Online
Speakers, 661 F.3d 1168 (U.S. Court of Appeals for the 9th Circuit 2011),
the Ninth Circuit reviewed the developing tests in the area of anonymous online
speech. Of the various approaches that Anonymous Online Speakers discussed,
the parties urge the court to use the test enunciated in Highfields
Capital Management, L.P. v. Doe, 385 F.Supp.2d 969 (U.S. District Court for
the Northern District of California 2005). `In choosing the proper standard to
apply, the district court should focus on the ‘nature’ of the [defendant's]
speech. . . .’ Art of Living Foundation v. Does, supra (citing In
re Anonymous Online Speakers (`[T]he nature of the speech should be a
driving force in choosing a standard by which to balance the rights of
anonymous speakers in discovery disputes’). . . .
Music Group Macao v.
John Does, supra.
She agreed with the parties that the Highfields Capital
Management, L.P. v. Doe, supra, standard
is the correct standard for this case.
The challenged speech here consists mainly of flatly derogatory statements
about Music Group's CEO, and, apparently to a lesser degree, some criticism of
the company's products that likely constitutes legitimate commercial criticism.
The 9th Circuit has indicated that the Highfields test is one of
middling rigor, appropriate where, as here, the challenged speech falls
somewhere beneath the most protected realm of `political, religious, or
literary’ discourse; is, in significant part, `commercial speech’ that enjoy [sic] `lesser’ protection; but may be
more safeguarded than pure `fighting words and obscenity,’ which is `not
protected by the 1st Amendment at all.’ See Anonymous Online
Speakers supra; Art of Living Foundation v. Does, supra.
Under Highfields, a
party seeking to discover the identity of an anonymous speaker must first `persuade
the court that there is a real evidentiary basis for believing that the
defendant has engaged in wrongful conduct that has caused real harm to the
interests of the plaintiff.’ Highfields Capital Management, L.P. v. Doe,
supra. If the plaintiff makes this showing, the court must then `assess and
compare the magnitude of the harms that would be caused to the [plaintiffs' and
defendants'] competing interests’ by ordering that the defendant's identity be
disclosed. Highfields Capital Management, L.P. v. Doe, supra. If
such an assessment reveals that disclosing the defendant's identity `would
cause relatively little harm to the defendant's 1st Amendment and privacy
rights,’ but is `necessary to enable [the] plaintiff to protect against or remedy
serious wrongs,’ then the court should allow the disclosure. Highfields
Capital Management, L.P. v. Doe, supra.
Music Group Macao v.
John Does, supra.
Next, the judge considered Music Group’s motion to “transfer
this subpoena-enforcement proceeding back to the Western District of
Washington, the court that is hosting the underlying litigation and which
issued the subpoenas in question”. Music Group Macao v. John Does, supra. She pointed out that, under Rule45(d)(2)(B)(i) of the Federal Rules of Civil Procedure, Music Group Macao’s “initial
motion to compel Twitter to comply with the subpoenas is properly before this
court” because it is the “`district where compliance [with the subpoenas] is
required.’” Music Group Macao v.
John Does, supra. She went on to
explain that
`[w]hen the court where compliance is
required did not issue the subpoena,’ as is the case here, `it may transfer a
motion under this rule to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional circumstances’ warranting
the transfer. Rule 45(f). `The proponent of transferring the motion to the
issuing court bears the burden of showing “exceptional circumstances.”’ W. Schwarzer
et al., California Practice Guide: Federal Civil Procedure Before Trial
¶ 11:2290.1 (Rutter Group 2014). . . . `The prime concern’ in deciding
Rule 45(f) transfer motions `should be avoiding burdens on local
nonparties subject to subpoenas, and it should not be assumed that the issuing
court is in a superior position to resolve subpoena-related motions.’ Rule
45(f) advisory committee notes to 2013 amendments.
Music Group Macao v.
John Does, supra. The judge then found that “no `exceptional circumstances’
justify sending this motion back” to the Western District of Washington,
“largely for the reasons that Twitter sets forth in opposing the transfer.” Music Group Macao v. John Does, supra.
Next, the judge undertook the Highfields Capital Management
analysis of whether the plaintiff’s claims against the defendant(s) “rest on a
`real evidentiary basis’”. Music Group Macao v. John Does, supra. The judge explained that a prima facie
defamation claim under Washington state law
requires a false statement that was not
privileged, fault, and damage. See Mohr v. Grant, 108 P.3d 768
(Washington Supreme Court 2005). A statement is defamatory if it tends to harm
the reputation of another by lowering him in the community's estimation or
deterring third persons from associating with him. Right–Price
Recreation, LLC v. Connells Prairie Cmty. College, 46 P.3d 789
(Washington Supreme Court 2002). Damages need not be proven when a statement is
defamatory per se. E.g., Valdez–Zontek v. Eastman Sch. Dist., 225
P.3d 339 (Court of Appeals of Washington 2010). Defamation per se exists
where a statement alleges that the plaintiff: (1) committed a serious crime;
(2) has a loathsome disease; (3) is unchaste; or (4) conducted himself in a
manner incompatible with his business, trade, profession, or office. Davis
v. Fred's Appliance, Inc., 287 P.2d 51 (Washington Court of Appeals 2012).
Music Group Macao v.
John Does, supra.
The judge found that the Music Group had not shown a real
evidentiary basis for its
defamation claim against the @
NotUliBehringer user. The evidence Music Group has submitted shows
that this user's criticisms fall into two categories. The first consists of
direct and indirect commercial criticism of Music Group's business practices
and products. . . . This is legitimate `commercial speech’ that enjoys First
Amendment protection. See Highfields
Capital Management, L.P. v. Doe, supra (noting protected nature of `sardonic
commentary on a public corporation . . . through irony and parody’). `These are
views in which other members of the public may well be interested — and that
defendant has a right to express anonymously.’ . . .
The second group of comments by @
NotUliBehringer are different; one comment indirectly accuses the
company's CEO of tax evasion; another of traveling internationally while
concealing things inside his body. . . . The first comment is troubling, the
latter merely crass. But they are both onetime comments. Even the tax-evasion
remark would likely be read as what it is: one rant among countless others from
someone with an obvious grudge against Music Group's CEO. The court does not
think that, in the eyes of an ordinary person, this one-time comment would
lower the CEO in the community's estimation. Even if it would . . . — and
reading the statement `in context,’ which is `the only relevant way to view
communications,’ Highfields Capital Management, L.P. v. Doe, supra —
this single comment does not outweigh the defendant's 1st Amendment interest in
anonymous speech.
Music Group Macao v.
John Does, supra.
She then took up the claim against the @FakeUli user,
explaining that Music Group had
shown a `real evidentiary basis’ for
claiming that the @ FakeUli user's postings have defamed it.
According to Music Group, the @ FakeUli user has stated that
Music Group intentionally designs its products to break within three to six
months, that the company `encourages domestic violence and misogyny,’ and that
the company's CEO `engages with prostitutes.’ . . . If the first comment falls
within the realm of legitimate commercial criticism, the last comments are
plainly defamatory and are so per se. These comments would
provide a `real evidentiary basis’ for Music Group's defamation claim. The
court would note, though, that Music Group can pursue only comments that are
made about, or implicate, the company itself— and not those about its CEO, who
is not a party to this suit. . . .
The one @ FakeUli comment
that could stand as actionably defamatory is the remark in which @
FakeUli accuses Music Group, as a company, of encouraging `domestic
violence and misogyny.’ For purposes of this prong of the Highfields analysis,
the court will assume that this comment can underwrite a viable defamation
claim (though it is conceivable that, for reasons discussed below, the claim
may viewed as enjoying a 1st Amendment `privilege’ that makes it inactionable
in defamation). . . .
Music Group Macao v.
John Does, supra.
Finally, the judge applied the final Highfields analysis, which “requires the court to `compare the
magnitude of the harms that would be caused to the [plaintiffs' and defendants']
competing interests’ by ordering that the defendant's identity be disclosed.” Music Group Macao v. John Does, supra. She began with the @ NotUIiBEhringer account,
explaining that the most
troubling comment Music Group
attributes to @ NotUliBehringer is the indirect suggestion
that the company's CEO evaded taxes. (The other comments, as the court has
noted, amount either to legitimate, `sardonic’ commercial criticism, or a
one-time eruption of the sophomoric.) First, this comment appears to be
entirely about Music Group's CEO, rather than the company itself. For reasons
that straddle defamation and 1st Amendment law, the remark probably cannot
serve to ground Music Group's own defamation claim. . . .
The court does not discount the
impropriety of the tax-evasion charge, or how troubling it is to be the
comment's target. But this seems to have been a one-time piece of snideness.
Viewed `in context,’ Highfields Capital Management, L.P. v. Doe, supra,
amid the blizzard of invective from an obviously disgruntled person, the court
is more concerned that breaching the defendant's anonymity for this single
remark would unduly chill speech, and `deter other critics from exercising
their `1st Amendment.’ Art of Living Foundation v. Does, supra.
Music Group Macao v.
John Does, supra. She then conducted
the final Highfields analysis of the @
FakeUli account, noting that the
only comment that might have justified
unmasking @ FakeUli ‘s identity is the one that accuses Music
Group of encouraging `domestic violence and misogyny.’ That comment, on its
face and read alone, is less like legitimate commercial criticism and more like
the `fighting words and obscenity’ that `are not protected by the `1st
Amendment at all.’ See In re Anonymous Online Speakers, 661
F.3d 1173 (U.S. Court of Appeals for the 9th Circuit 2011). . . .
But there was more to the comment than
Music Group reproduced here. . . . Immediately following the words `domestic
violence and misogyny’ is a shortened URL. That URL is home to a short video, a
comedic ad promoting one of Music Group's products: a roughly briefcase-sized
metal box that is apparently an audio mixer. In the commercial — a domestic
tableau not unreminiscent of early Mike Leigh — a woman tries to convince a man
to leave their house for a social affair. He ignores her; he is too busy using
his Music Group mixer.
Growing irate, she begins to hurl
things at him. He blocks these seriatim with his mixer, which the commercial's
title indicates is `Bulletproof.’ He first blocks a coffee mug, then a wine
bottle, then a chef's knife. Finally, emotions in crescendo and denouement surely
at hand, she raises a gun and fires — only to be struck by the ricochet off the
impregnable mixer. The hapless woman falls dead, and hammily. Falls, too, the
curtain.
Music Group Macao v.
John Does, supra.
The judge then explained that the
point is that the video is comedic.
(Whether funny or not is another question.) In this context, there is no way to
see @ FakeUli ‘s comment as anything other than joking and
ironic. It does not fall outside the 1st Amendment for being in poor taste.
Music Group Macao v.
John Does, supra.
She therefore
denied Music Group’s (i) “motion to enforce the @ NotUliBehringer and @
FakeUli subpoenas” and (ii) “motion to transfer this proceeding to the
Western District of Washington.” Music Group Macao v. John Does, supra.
No comments:
Post a Comment